January 8, 1976
Subject:
State Departments, Institutions and Agencies; Municipalities; Zoning
Requested by:
The Honorable James C. Green
Speaker, House of Representatives
The Honorable John T. Henley
President Pro Tempore, Senate
General Assembly of North Carolina
Questions:
(1) May the City of Raleigh designate as a historic district any portion to the area delineated by statute for acquisition for the expansion of state governmental facilities?
(2) Would the restrictions imposed upon use of properties within a historic district apply to properties owned by the State?
Conclusions:
(1) Yes.
(2) No.
As to Conclusion (1), G.S. 146-22.1(3) delineates an area to be acquired by the State for future expansion of governmental facilities. The State has acquired some of the properties within that area. Others remain in private ownership. Parts 3A and 3B of Article 19 of Chapter 160A of the General Statutes authorize municipalities to create historic districts and impose restrictions upon the use of properties within such districts. It would thus appear that the City of Raleigh has the authority to create a historic district within the area involved. The effect of such action upon State-owned property is discussed under Conclusion (2).
As to Conclusion (2), it is a rule of statutory interpretation that "General Statutes do not bind the State unless the State is expressly mentioned therein". 7 Strong, NC Index 2d, Statutes § 5, p 70; Yancey v. Highway Commission, 222 NC 106 (1942).
While the general zoning authority of municipalities contained in Part 3 of Article 19 of Chapter 160A extends to State property by reason of G.S. 160A-392, that statute expressly refers to the "provisions of this Part".
Historic district zoning is authorized by Parts 3A and 3B of Article 19 of Chapter 160A. Neither Part contains any provision making the State subject to municipal authority in this regard.
Therefore, if the City of Raleigh were to create a historic district within the area delineated by G.S. 146-22.1(3), properties owned by the State would not be subject to the restrictions usually attendant to such action.
Rufus L. Edmisten
Attorney General
T. Buie Costen
Special Deputy Attorney General